May 31, 2019
In the first step towards House passage, several witnesses at a House Education and Labor Committee hearing urged Congress to strengthen age discrimination protections and make it easier for plaintiffs to prevail in court by enacting the Protecting Older Workers Against Discrimination Act (H.R. 1230).
The bipartisan bill would overturn the U.S. Supreme Court’s decision in Gross v. FBL Financial Services and allow mixed motive discrimination claims (i.e., those where the employment action involved other factors besides discrimination) under the Age Discrimination in Employment Act (ADEA).
But H.R. 1230 would go beyond reversing Gross by allowing mixed motive claims to be brought under the ADA and the Rehabilitation Act, as well as in retaliation cases brought under Title VII and the ADA.
H.R. 1230 would also go beyond reversing Gross by allowing mixed motive claims to be established either through direct or circumstantial evidence under all federal anti-discrimination and anti-retaliation provisions unless the specific statute directs otherwise.
Hearing witnesses were unable to bring forth any compelling evidence showing actual negative impacts on plaintiff success in discrimination lawsuits under the ADEA post-Gross. Laurie McCann, a senior attorney with AARP, even admitted that “it is difficult to quantify the impact that the Gross decision has had on the number of older workers who bring cases, and the number of those who win them.”
Outlook: The House is likely to mark up and pass H.R. 1230 this summer, but its future is far less certain in the GOP-controlled Senate despite its bipartisan introduction.